Document Type


Publication Date

November 2012


Recently, the Federal Circuit upheld the Commission’s decision to exclude goods based on a trade secret violation that largely happened abroad. The American University Law Review critiqued that decision on two grounds: First, that a presumption against extraterritorial application of U.S. law applied; and second, that licensing alone could not establish a domestic industry. The American University Law Review's critique remains incomplete, however, as the Federal Circuit correctly decided the case for at least two reasons. first, the Federal Circuit correctly applied the “extraterritorial presumption” canon of construction; and second, the recent Federal Circuit decision in InterDigital Communications LLC v. ITC abrogates her argument that the domestic industry fails for businesses that only license the IP-at-issue. Furthermore, the Review's argument misconstrues the domestic industry requirement as focusing only on the specific IP in question, rather than the more general question of whether the unfair act damages the company’s domestic industry directly. This Article explores and rebuts those two arguments.